How To Work with Common Law
by Christopher Enright
This book commences by making some general points about common law. It then outlines three important aspects of common law rules, which it expands in the next three chapters.
A common law rule consists of the elements and consequences of the rule joined by a conditional statement. These constitute the ratio decidendi of the case that first created the rule. There is also discussion of how to view precedent as being based on policy.
A way to appraise the value of a rule is to determine its net benefit. In principle this is simple – add up the benefits, add up the costs then subtract total costs from total benefits. In practice it is usually not simple because there is no common scale that will measure all of the items that make up the benefits and the costs.
A common law rule has authority because of the doctrine of stare decisis (to stand by what has been decided). This gives the case authority:
- It makes the ratio of the case binding on later courts beneath it in the hierarchy.
- It makes the ratio of the case presumptively binding on the court itself – the court can depart from the decision if there is good reason to do so.
- Courts in the same jurisdiction that are not bound by the case will still pay heed to the decision.
Once the original court has made a common law rule, later courts may remake it in various ways. The starting point may be some appraisal of the rule that some standardised case annotations seek to capture. If the court takes action it may interpret the rule, modify the rule or abolish the rule.
- The final chapter considers some major characteristics of common law that the book has not covered so far. These are as follows:
- There is the relationship of common law to statute law.
- a description of how to work with common law
- There is the problem of retrospectivity – when a court first makes common law the court may apply it retrospectively to the case before it.
- Since the component of a common law can be scattered through a number of cases the best source for a clear statement of a common law rule may be a textbook on the subject.
- Common law is transnational in scope. It applies in many countries other than the Untied Kingdom because they were once its colonies.
- Because any court dealing with a common law rule may state the rule in the court’s own words the text of the rule is fluid. There is no official statement of the rule as there is with statutes.
120 pages softcover
About the Author
Christopher Enright is a chartered accountant, barrister and solicitor. He has lectured in law at several universities. He specialises in legal method.